Section 9 good behaviour bonds
[4-700] Short history
Prior to the commencement of the Crimes (Sentencing Procedure) Act 1999, a New South Wales judge could bind over an offender on his or her own recognisance, with or without sureties, to keep the peace and be of good behaviour for a stated period and to come up for sentence if called upon. This was the common law bond: see Griffiths v The Queen (1977) 137 CLR 293 at 319–324. In practice, an offender would only be called up if he or she were in breach of any of the terms or conditions of the recognisance. Part 9 of the Act abolishes common law bonds (see s 101) by replacing them with various sentencing options, including good behaviour bonds under s 9 of the Act. The Act also replaces the word “recognisance” with the word “bond”. This change in terminology was intended to simplify the sentencing systems and facilitate the understanding of the importance and effect of bonds: Hansard, Legislative Council, 2R, 30/11/99, 28. The word “recognisance”, however, is still used in federal legislation, as illustrated, for example, in the terms of ss 19B and 20 Crimes Act 1914 (Cth).
Common law bonds differed only in minor respects from the power given in the former s 558 Crimes Act 1900: Griffiths v The Queen (1977) 137 CLR 293 per Aickin J. In practice, most courts utilised that section rather than the common law. The history of the common law bond or “bind over” is also discussed in Griffiths v The Queen by Jacobs J at 312.
[4-710] The Act
A good behaviour bond may be imposed either with or without a conviction being recorded. It is defined in s 3 Crimes (Sentencing Procedure) Act 1999 to mean “a bond referred to in ss 9(1), 10(1) or 12(1)” of the Act.
Section 9 Crimes (Sentencing Procedure) Act 1999 empowers the court, following a conviction, to direct an offender to enter into a bond to be of good behaviour for a specified period. It provides as follows:
Instead of imposing a sentence of imprisonment on an offender, a court may make an order directing the offender to enter into a good behaviour bond for a specified term.
The term of a good behaviour bond must not exceed 5 years.
This section is subject to the provisions of Part 8.
Thus s 9 bonds may be imposed where a penalty of imprisonment is otherwise available.
The term of the bond must not exceed five years: s 9(2).
It must contain a condition that the person under bond will appear before the court if called on to do so at any time during the term of the bond and a condition to the effect that, during the term of the bond, the person under bond will be of good behaviour: s 95(a) and (b).
The court may not make a community service order (CSO) and direct the offender to enter into a good behaviour bond in respect of the same offence: s 13.
The court may not impose conditions requiring the person under bond to perform community service work, or make any payment, whether in the nature of a fine, compensation or otherwise: s 95(c).
The Local Court is not empowered to impose a good behaviour bond if the offender being dealt with is absent: s 25(1)(e) Crimes (Sentencing Procedure) Act 1999.
[4-730] Sentencing procedures for good behaviour bonds
Part 8 of the Act applies in circumstances in which a court is considering, or has made, an order that provides for an offender to enter into a good behaviour bond: s 94.
[4-740] Terms and conditions
Pursuant to s 95 Crimes (Sentencing Procedure) Act 1999, certain conditions must be contained in the good behaviour bond. These include conditions to the effect that:
the person under the bond will appear before the court if called upon to do so at any time, and
during the term of the bond, the person under bond will be of good behaviour.
When imposing a good behaviour bond, the court must ensure that all reasonable steps are taken to explain:
the offender’s obligations under the bond; and
the consequences that may follow if the offender fails to comply with those obligations: s 96(1) Crimes (Sentencing Procedure) Act 1999.
The explanation is to be in a language the offender can readily understand.
Examples of terms and conditions
1. Probation Service Supervision
Supervision by an officer of the NSW Probation Service can be made a condition of a good behaviour bond. A condition of this type may state that the offender report as long as it is deemed necessary by the supervising officer, and that if the officer sees fit then, at his or her discretion, reporting conditions and supervision can be dispensed with. Thus, for example, a good behaviour bond may be ordered to run for three years but the supervising officer may only consider it necessary that the offender report for 18 months, the offender’s progress being such that reporting is no longer required.
Attending for drug or alcohol abuse counselling can be made a condition of a good behaviour bond.
3. Residence at a rehabilitation centre
Residence at a particular rehabilitation centre can be made a condition of the bond.
Payment of compensation to the victim cannot be made a condition of the good behaviour bond: s 95(c)(ii) Crimes (Sentencing Procedure) Act 1999. This appears to be a change from the position under former ss 556A and 558 Crimes Act 1900, where there was no such restriction.
Onerous and unreasonable bond conditions
The issue of whether a condition of a bond is too onerous and unreasonable remains a question for the courts. Section 95(c) Crimes (Sentencing Procedure) Act 1999 provides, inter alia, “a good behaviour bond … may contain such other conditions as are specified in the order by which the bond is imposed …”
In R v Bugmy  NSWCCA 258, after reviewing the authorities on bond conditions Kirby J said at :
First, the discretion as to conditions that may be attached to a bond is broad but not unlimited. The conditions must reasonably relate to the purpose of imposing a bond, that is, the punishment of a particular crime. They must therefore relate either to the character of that crime or the purposes of punishment for that crime, including deterrence and rehabilitation.
Secondly, the conditions must each be certain, defining with reasonable precision conduct which is proscribed.
Thirdly, the conditions should not in their operation be unduly harsh or unreasonable or needlessly onerous.
Condition (4) of Mr Bugmy’s bond stated: “He is to remain away from Wilcannia during the term of this sentence unless he has, upon prior application to me, been permitted to do so.”
The court held that condition (4) breached the second principle — it was too uncertain. The condition that he could not enter Wilcannia was certain but the exception to it — that he must obtain the judge’s permission — was uncertain. Therefore the second principle was breached.
Further, s 95 does not envisage the sort of supervision contemplated. Kirby J said at :
[T]he exception to condition (4) was administrative in character, not judicial. There is no defined procedure for making an application, no right for the Crown to be present, and no obvious right of appeal. Where permission is given by the Judge, does he have the power to impose conditions, as was done in this case? If so, what is the status of those conditions? Are they “conditions” for the purposes of the procedure in s 98(1), where a breach is suspected? If not, what is the remedy if there is a breach?
Condition (4) also breached the third principle — it was unduly harsh. Kirby J said at :
[T]he exception, even if properly framed, and appropriately administered by the Probation and Parole Service, would still be harsh and unreasonable. The term of the bond was almost two years. That is a long time to exclude or effectively exclude a person from normal physical contact with his family. Even in prison family members are permitted to visit. Whilst it was open to his Honour, in the interests of Mr Bugmy’s rehabilitation, and appropriately protecting the community, to provide for his exclusion from Wilcannia for a short period (say six months), two years was too long. A short period may have given Mr Bugmy the respite from alcohol abuse that may have enabled him to have successfully tackled his problem.
In R v JJS  NSWCCA 225, the bond condition placed on the applicant that he have “no unsupervised contact with children under the age of 12” was held to be imprecise and unreasonable. It would be difficult for the applicant to avoid contact with children given his own age and the fact that he resided with his 9 year old sister. The court again held that it is desirable that conditions of a bond are expressed in terms which define with reasonable precision the ambit of the forbidden conduct. Further, the bond period of five years, which is the maximum bond length available under s 9(2) Crimes (Sentencing Procedure) Act 1999, was unduly long, particularly given that the applicant had complied with stringent bail conditions for 20 months prior to being sentenced. The sentence was held to be unduly burdensome and inappropriate in the circumstances of the case.
[4-750] Bonds and other sentencing orders
Where more than one order is intended to be imposed for the one offence, a separate order should be given for each as per the appropriate Form of Order.
A fine may not be imposed as a condition of a good behaviour bond: s 95(c)(ii) Crimes (Sentencing Procedure) Act 1999. It is, however, permissible to impose a fine in addition to a good behaviour bond: s 14.
Community service orders
A sentencer is not able to impose both a good behaviour bond and a community service order in relation to the same offence: s 13 Crimes (Sentencing Procedure) Act 1999. Conversely, the undertaking of community service work cannot be made a condition of a good behaviour bond: s 95(c)(i) Crimes (Sentencing Procedure) Act 1999.
Non-association or place restriction order
Non-association and place restriction orders are made in addition to, rather than instead of, other penalties. They are available for any offence that is punishable by imprisonment for six months or more, whether or not the offence is also punishable by fine. Hence they may be made in addition to a good behaviour bond: s 17A Crimes (Sentencing Procedure) Act 1999. As for an offender’s right to decide not to participate in intervention program, see s 99A Crimes (Sentencing Procedure) Act 1999.
Compensation and restitution
Part 4 of the Victims Support and Rehabilitation Act 1996 allows the court to direct convicted persons to pay compensation to certain “aggrieved persons”. A s 9 order qualifies as a conviction for the purposes of the Victims Support and Rehabilitation Act 1996.
A s 10 order is taken to be a conviction for the purposes of court ordered compensation payments under Pt 4 of the Victims Support and Rehabilitation Act 1996: s 10(4)(b) Crimes (Sentencing Procedure) Act 1999.
[4-760] Failure to enter into bond
Where the court directs the making of a good behaviour bond and the offender fails to enter into such a bond, the court may sentence the offender as if the bond had never been made: s 97 Crimes (Sentencing Procedure) Act 1999.
[4-770] Breach of bond
If a court suspects that an offender has failed to comply with the conditions of a good behaviour bond (whether imposed under ss 9, 10 or 12), the court that sentenced the offender (or a court of like jurisdiction) may call on the offender to appear before it and, if necessary, issue a warrant for the offender’s arrest: s 98 Crimes (Sentencing Procedure) Act 1999.
Court of like jurisdiction
Section 98(1) Crimes (Sentencing Procedure) Act 1999 draws a distinction between a court “of like jurisdiction” and a court “of superior jurisdiction”. The expression “court of like jurisdiction” empowers the Local Court to call up and, if satisfied there has been a failure to comply with a condition or conditions, to revoke a good behaviour bond which is imposed by the District Court in an appeal against sentence: DPP (NSW) v Jones  NSWCCA 164 at . Where a failure to comply with a condition of the bond involves the commission of further offences, it will be open to the Local Court when sentencing for those further offences to deal with the failure to comply with the bond, even though it was imposed in the District Court pursuant to an appeal against an earlier sentence: DPP (NSW) v Jones at .
Section 71(3) Crimes (Appeal and Review) Act 2001 (headed “Variation of sentences of Local Court”) provides:
Any sentence varied or imposed by an appeal court, and any order made by an appeal court under this Act, has the same effect and may be enforced in the same manner as if it were made by the Local Court.
The language of s 98 and s 71 Crimes (Appeal and Review) Act suggests the Local Court and District Court are courts “of like jurisdiction” in circumstances where a bond, imposed in the District Court following a sentence appeal, is breached: DPP (NSW) v Jones at –. Section 71(1)–(2) precludes the District Court imposing any sentence that could not be imposed by the Local Court: DPP (NSW) v Jones at . Further, s 71(3) indicates that a bond imposed in the District Court has the same effect and may be enforced in the same manner as if it had been imposed by the Local Court: DPP (NSW) v Jones at .
However, it has also been held that “relevant court” for the purposes of s 98(1)(a) was the Local Court in circumstances where the bond was imposed by that court, and the sentence was confirmed on appeal by the District Court: Yates v The Commissioner of Corrective Services, NSW  NSWSC 653 at  referred to in DPP (NSW) v Jones at . The District Court does not have jurisdiction to deal with breaches without the consent of the offender: Yates v The Commissioner of Corrective Services, NSW at .
Court of superior jurisdiction and consent
A court of superior jurisdiction must obtain the express consent of the offender pursuant to s 98(1)(c) before it is permitted to deal with a suspected breach of a s 9 bond imposed by a lower court: Yates v The Commissioner of Corrective Services, NSW  NSWSC 653 at . Informal or implied consent will not suffice: Yates v The Commissioner of Corrective Services, NSW at . The consent must occur at a time when the offender is called upon to appear before the court rather than at the appearance: Yates v The Commissioner of Corrective Services, NSW at .
Breaches should be dealt with swiftly and in a manner that demonstrates how seriously they are regarded. However, the sentence imposed must not exceed the sentence that is appropriate for the original offence. It may however reflect the fact that the offender has rejected the trust placed in him or her by the previous sentencing court, that this shows a lack of remorse and casts doubt on the offender’s prospects for rehabilitation: R v Morris (unrep, 14/7/95, NSWCCA). Kirby ACJ, Badgery-Parker and Bruce JJ added:
Two things need to be borne in mind by any court which is called upon to sentence an offender in circumstances where that offender is called before the court by reason of such a breach. The first and fundamental is that that offender comes to be punished not for the breach but, following the breach, for his other original offence in respect of which the recognisance was imposed. Secondly, in assessing the appropriate punishment for that original offence, the court must not ignore whatever penalty, whether by way of imprisonment or otherwise, may have been imposed by it or by some other court in respect of the conduct constituting the breach. The principle of totality clearly applies to the sentences to be imposed in respect of the breach and thereafter in respect of the original offence.
Where satisfied that an offender appearing before it has failed to comply with the conditions of a good behaviour bond, the court may:
decide to take no action: s 98(2)(a);
vary the conditions of the bond: s 98(2)(b);
impose further conditions on the bond: s 98(2)(b); or
revoke the bond: s 98(2)(c) Crimes (Sentencing Procedure) Act 1999.
Special breach sections apply to good behaviour bonds made under s 12(1)(b): see Suspended Sentences at [5-780].
Effects of revocation
If a court revokes a good behaviour bond made under s 9, the court may re-sentence the offender for the original offence: s 99(1)(a) Crimes (Sentencing Procedure) Act 1999.
The Crimes (Sentencing Procedure) Act 1999 applies to the sentencing or re-sentencing of an offender pursuant to s 99, in the same way as it applies to the sentencing of an offender on conviction: s 99(4).
Action after expiry
Actions under Pt 8, in relation to good behaviour bonds, may be taken after the bond has expired. However, such action may only be pursued in relation to matters arising during the term of the bond: s 100 Crimes (Sentencing Procedure) Act 1999.